Posts Tagged ‘NAHC’

Judge Allows Face-to-Face Lawsuit to Move Forward

January 7, 2015

Another huge win for home care! This particular ruling could have major implications…..

  • CMS approaching our industry with a settlement offer on the thousands of denied claims that are being held in limbo at the ALJ level because of the F2F narrative, so start considering what you might accept on your denied claims.
  • It could help slow down or lessen the intensity of the next round of F2F audits from RACs and MACs. They are gearing up and this may take a little wind out of their sails.
  • It strengthens our industry and gains us respect and leverage on a host of other critical issues. This will help us!

We are very grateful to all home care providers who choose every year to support associations like NAHC and HCAF. It is your dues dollars that made this happen. Thank you.  

January 5, 2015

Federal Court Rules in Favor of Homecare

Clears the Way for NAHC’s Face-to-Face Lawsuit to Go Forward

Today, a federal district court issued a resounding victory for the National Association for Home Care & Hospice (NAHC) and the home health agencies, Medicare participating physicians, caregivers, and beneficiaries it represents. The U.S. District Court for the District of Columbia held that it has the power to hear a challenge to the validity of a Medicare rule that requires physicians to provide a “narrative” explaining why the patient meets Medicare coverage standards for home health services. The court issued an order denying Medicare’s effort to have the lawsuit dismissed by the court.

The Centers for Medicare and Medicaid Services (CMS) issued a face-to-face rule that physicians had to lay eyes on patients and certify under penalty of law that that they were eligible to participate in Medicare and, more specifically, were “homebound” and needed “skilled care.” In addition, the rule required physicians to write a detailed narrative explaining the reasons why they thought this was true. This new requirement caused widespread chaos, spurred a physician rebellion, and in the end deprived many seniors from receiving the care to which they were entitled under the Medicare home health benefit.

NAHC convinced groups representing seniors and the disability community to join together with physician organizations and thereby succeeded in convincing a majority of the Senate to send a letter intervening on NAHC’s side in this matter. NAHC also filed suit in federal district court to overturn the onerous rule. The result was that CMS withdrew the physician narrative requirement which would have been effective January 1, 2015.

NAHC asked CMS to give the decision retroactive effect and pay claims that were denied between 2011 and 2014, but CMS denied to do so. NAHC made other appeals to CMS to settle the suit which it could have done by paying some $250 million owed to home health agencies for care they gave to Medicare patients between 2011-2014. This gave NAHC no choice but to proceed with the litigation.

In today’s action, the court ruled against the government on its motion to dismiss this case. The government attorneys had interposed numerous reasons, both substantive and procedural, as to why the case should not go forward, all of which were turned aside.

The court held that it would be futile for home health agencies to pursue endless administrative appeals challenging the requirement as Medicare had made it clear that it would reject all such appeals. By denying Medicare’s Motion to Dismiss, the legal validity of the narrative requirement will be fully reviewed by the federal court.

Medicare had filed a Motion to Dismiss the lawsuit arguing that administrative appeals had to be fully completed before a court had the power to hear a Medicare dispute. Medicare also argued that the case should be dismissed because the narrative requirement, on its face, was a valid interpretation of the authorizing law in the Affordable Care Act. Federal District Judge Christopher R. Cooper rejected both of these defenses.

Judge Cooper found that it would be futile for home health agencies to pursue administrative appeals because Medicare had definitively stated that it considered the requirement to be valid. NAHC had argued that Medicare had issued a final decision on the validity of the rule numerous times including when Medicare officials met with NAHC as well as in its issuance of the recent rule change that eliminated the narrative requirement. Judge Cooper agreed. He described the challenged policy as “embedded” and that “nothing indicates that administrative appeals might result in the agency overturning its regulation.”

While rejecting Medicare’s attempt to escape judicial review of the face-to-face narrative requirement, the court did grant dismissal of two additional claims in the lawsuit. NAHC also challenged the ambiguity of the interpretive guidance issued by the Centers for Medicare and Medicaid Services along with its failure to waive the recoupment of alleged overpayments under the Medicare “without fault” provision. On those matters, the court found that the factual complexities warranted a review of individual claim determinations at the administrative levels prior to any judicial intervention.

NAHC and Medicare will now move forward with the lawsuit. The next steps would include the filing of cross-motions for Summary Judgment. Summary Judgment is the equivalent of a trial on the merits of the claims where there are no material issues of facts in dispute. Here, NAHC argues that the plain language of the law prohibits Medicare from adding the burdensome narrative as a documentation requirement. The law itself only permits Medicare to require that a physician document that a face-to-face encounter occurred and when. As such, it is claim based on the language of the law itself and does not involve any facts other than that Medicare requires more documentation.

NAHC continues to litigate the dispute in spite of Medicare’s rescission of the narrative requirement to address the past claim denials and those denials that may still come involving home health services provided prior to January 1, 2015. If the lawsuit is successful, Medicare would be required to reopen and pay any claim previously denied for an insufficient narrative and stop any further claim reviews related to the narrative requirement.

NAHC continues to advise home health agencies to consider appealing any narrative-related claim denials while the lawsuit is progressing. Such action will preserve the opportunity to have the claims reviewed by Administrative Law Judges and also allow for easy identification of claims that may be subject to reopening if the lawsuit is successful.

“This great victory in federal court means that Medicare patients, physicians, and the home health community will have their day in court,” said NAHC President Val J. Halamandaris. “It is a clear signal that a federal judge also does not see why a rule which CMS had invalidated effective January 2015 should be honored for the years 2011, 2012, 2013, and 2014. There is no reason why the home care community should not be paid for the services it rendered in good faith to Medicare home health beneficiaries.”

Bill Dombi, NAHC’s Vice President for Law, appealed to CMS to save Medicare the cost of the trial. “We urged them to do the right thing. The right thing is to pay these claims. NAHC intends to pursue this litigation until CMS agrees to do so.”

2013 Year in Review: Home Care Regulations and Advocacy

December 27, 2013

2013 was an eventful year within the legal and regulatory realms for home care providers at both the state and federal level. Along the way, HCAF has fought to best represent our members in advocating for the best regulatory environment possible. Below are the most significant developments from the legal and certain regulatory issues from this past year:

1.  HCAF successfully advocates to reduce Florida quarterly report fine from instant $5,000 to $200 per day until $5,000 limit

Until July of this year, all home care providers licensed in Florida were required to complete a quarterly report to be submitted to the Agency for Health Care Administration (AHCA) in order to help curb Medicare and Medicaid fraud. Even agencies who were not Medicare or Medicaid certified were required to complete this report. The penalty for submitting the report even one day late was an instant fine of $5,000 to the agency; a significant amount. Over the years, AHCA had collected over $6.3 million from this fine alone.

HCAF worked with our friends in the legislature, Senator Anitere Flores and Representative Jose Felix Diaz in order to pass a bill that would reduce the fine from $5,000 to $200 per each day the report is late in being submitted with a cap of $5,000. In addition, this bill spared non-Medicare and Medicaid certified providers from needing to answer the report any longer. This was a huge success for the industry in Florida and we could not have done it without our member’s efforts in joining us on our Tallahassee Legislative Days to lobby the legislature for their support.

2. Obama Administration delays the start of the employer mandate provisions of the health care reform law

Responding to the pleas of thousands of small businesses in home care and otherwise, President Obama moved the effective date of the ACA provision mandating that companies either provide health insurance to their full-time employees or pay significant monetary penalties. A NAHC study showed that the vast majority of home care companies, particularly those that provide Medicaid and private pay services, do not currently provide all full-time workers with health insurance.  HCAF has advocated for the delay, explaining to administration officials that care access would be significantly jeopardized by these requirements. Furthermore, we continue to advocate to change the definition of a full-time employee be raised from an employee that works 30 hours per week to 40 hours per week.

3.   US Department of Labor issues final rule on the companionship services overtime exemption

After maintaining a consistent policy for over 37 years, the US Department of Labor completely changed its interpretation of the Fair Labor Standards Act and revised the “companionship services” exemption from minimum wage and overtime compensation. The longstanding rule had been successfully defended by NAHC twice at the United States Supreme Court. The new rule redefines companionship services to virtually eliminate any potential application in home care by removing personal care as a central part of “companionship services.” Additionally, DoL eliminated any application of the remaining exemption to workers employed by third parties such as home care agencies. HCAF and NAHC are evaluating a lawsuit to challenge the changes while working to get payers such as Medicaid to cover any new costs.

4.   CMS Issues Home Health Rate Rebasing Rule

The Centers for Medicare and Medicaid Services (CMS) issued the Final Rule setting out payment rates for home health services in 2014. This rule includes the start of the 4-year rate rebasing required under the Affordable Care Act. CMS reduces the base episode rate by the equivalent of 3.5% of 2010 rates while increasing LUPA per visit rates by 3.5%. The Final Rule was a modest improvement over the proposed rule due to a recalibration of case mix weights and a reduction of the amount of the rate cut. HCAF continues to pursue revisions to the rebasing rule through Congress and potential litigation.

5.   Moratorium on New Home Health Agencies in Certain Areas Instituted

CMS applied the authority it was given under the ACA to establish moratoria on new home health agencies for the first time in Miami-Dade County and an area around metropolitan Chicago. It is expected that the six month moratoria will be extended another six months in both locations in 2014, and that CMS may add other geographic areas as well. HCAF supports the institution of this moratorium in helping the fight against fraud in our industry, but we do believe there are several other places in the country that would benefit from a freeze on new agencies as well.

6.   CMS Initiates Post-Acute Care Bundling Demonstrations

As the first big step towards innovation in Medicare payment policy directly affecting home health services, CMS approved, for Phase 1, a series of bundling proposals for post-acute care. These proposals including bundling with hospitalization payment and post-acute care only.

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Congressional Letter Opposing Face-to-Face Documentation Requirements Sent to CMS’ Administrator

September 27, 2013

Last week, a bipartisan group of 75 Members of Congress sent a letter to Marilyn Tavenner, the Administrator for the Center for Medicare and Medicaid Services (CMS), on the overly complicated and burdensome face-to-face (F2F) physician encounter documentation requirements promulgated by CMS.  The letter asserts that these documentation requirements go well beyond what the Affordable Care Act (ACA) required.

The letter was circulated by Representatives Tom Reed (R-NY), Paul Tonko (D-NY), Chris Smith (R-NJ), and Robert Andrews (D-NJ), and was sent to every congressional office asking for additional Member support.

New York and New Jersey NAHC members initiated the sign on letter and NAHC members and advocates were integral in the effort to get the 75 lawmakers to add their name to the letter.

HCAF worked diligently to get Congressmen from Florida to add their names to the letter. We are very thankful to Rep. Kathy Castor (D-FL 14) and Rep. Alcee Hastings (D-FL 20) for including their names on the letter.

The final 75 lawmakers who signed the letter are Democrats and Republicans from every region of the country representing rural, urban and suburban populations. In the letter, the lawmakers express their primary concerns with the F2F encounter requirement:

”[U]nder the Affordable Care Act (ACA), Congress included a provision aimed at increasing collaboration between home health agencies and physicians. This provision, implemented by the Centers for Medicare and Medicaid Services (CMS), is known as the Face-to-Face (F2F) Encounter Requirement. While we support the need for direct encounters between patients and physicians to occur, the current regulations contain complicated, confusing, and overlapping documentation requirements that exceed the intent of the law passed by Congress. These requirements have imposed a significant burden on home health providers and physicians in our districts.

As implemented by CMS, physicians are now required to document, sign and date an additional form with a narrative of the patient’s condition in order to justify home care services. Home health agencies must obtain this signed form prior to billing for Medicare home health services… Prior to billing for Medicare home health services, home health agencies already must obtain a signed and dated form from the physician which outlines the full plan of care…We have heard from home health agencies that believe as a consequence, these new forms are counterproductive to the underlying F2F intent.”

HCAF and NAHC will be working with the sponsors of the letter on follow-up with CMS.  Please continue to send Mary Carr ( your examples of F2F claims denials that you do not believe were justified, as well as physician complaints about the F2F documentation requirements, to aid in our advocacy with CMS.

To read the full article that was sent to Ms. Tavenner, as well as to see the final list of signees, please click here.

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